New Issue: European Journal of International Law

The latest issue of the European Journal of International Law (Vol. 19, no. 1, February 2008) is out. Contents include:

• Ofer Eldar, Vote-trading in International Institutions
• Noemi Gal-Or, The Concept of Appeal in International Dispute Settlement
• Aurel Sari, Status of Forces and Status of Mission Agreements under the ESDP: The EU's Evolving Practice
• Symposium: Human Rights
• Gerald L. Neuman, Import, Export, and Regional Consent in the Inter-American Court of Human Rights
• Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime
• Alexander Orakhelashvili, The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?
• Philip Alston, Jason Morgan-Foster, and William Abresch, The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the 'War on Terror'

Treaty Transmittal: Amendments to the Constitution and Convention of the ITU

On Tuesday, April 8, the President transmitted to the Senate, for its advice and consent to ratification, the amendments to the Constitu­tion and Convention of the International Telecommunication Union (Geneva, 1992), as amended by the Plenipotentiary Conference (Kyoto, 1994) and the Plenipotentiary Conference (Marrakesh, 2002), together with the declarations and reservations by the United States, all as contained in the Final Acts of the Pleni­potentiary Conference (Antalya, 2006). The transmittal package (Treaty Doc. 110-16) is here. According to the letter of transmittal, the amendments, "among other things: clarify the functions of certain International Telecommunication Union (ITU) officials and bodies; reduce the frequency of certain ITU conferences; clarify eligibility for re-election to certain ITU positions; enhance oversight of the ITU budget and provide for results-based (as well as cost-based) budget proposals; expand the scale of available contribution levels for Member States and Sector Members; and, clarify the definition of and role of observers participating in ITU proceedings."

Workshop: Rajagopal

Balakrishnan Rajagopal (Massachusetts Institute of Technology - Urban Studies and Planning) will give a talk today at the Georgetown University Law Center International Human Rights Colloquium on "The Limits of Legalizing Social Rights."

Workshops: Brunnée, Helfer, Merry, Steinhardt

Jutta Brunnée (Univ. of Toronto - Law) will give a talk today at the Temple University School of Law International Law Colloquium on "Interactional International Law: Reflections on Obligations."

Laurence Helfer (Vanderbilt Univ. - Law) will give a talk today at the Harvard Law School Faculty Workshop on "Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community."

Sally Engle Merry (New York Univ. - Anthropology & Law and Society Institute) will give a talk today at the New York University School of Law Institute for International Law and Justice International Legal Theory Colloquium on "Indicators in Global Governance."

Ralph Steinhardt (George Washington Univ. - Law) will give a talk today at the Yale Law School Human Rights Workshop on "Corporate Complicity and the Alien Tort Statute."

Guzman: International Tribunals: A Rational Choice Analysis

Andrew T. Guzman (Univ. of California, Berkeley - Law) has posted International Tribunals: A Rational Choice Analysis (University of Pennsylvania Law Review, forthcoming). Here's the abstract:

In well-functioning domestic legal systems, courts provide a mechanism through which commitments and obligations are enforced. A party that fails to honor its obligations can be hauled before a court and sanctioned through seizure of person or property. The international arena also has courts or, to expand the category somewhat, tribunals. These institutions, however, lack the enforcement powers of domestic courts. How, then, do they work, and how might they work better or worse? The first objective of this Article is to establish that the role of the tribunal is to promote compliance with some underlying substantive legal rule. This simple yet often overlooked point provides a metric by which to measure the effectiveness of tribunals. But a tribunal does not operate in isolation. The use of a tribunal is one way to resolve a dispute, but reliance on diplomacy and other traditional tools of international relations is another. Furthermore, even if a case is filed with a tribunal, there may be settlement prior to a ruling and, even if there is a ruling the losing party may refuse to comply. To properly understand international tribunals, then, requires consideration of the entire range of possible outcomes to a dispute, including those that do not involve formal litigation. The second goal of the Article is develop a rational choice model of dispute resolution and tribunals that takes this reality into account. The third goal is to explore, based on the above model, various features of international tribunals and identify those that increase effectiveness and those that reduce it. Finally, the article applies the analysis to help us understand two prominent tribunals, the World Trade Organization's Appellate Body and the United Nations Human Rights Committee.

Vazquez: Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution

Carlos Manuel Vazquez (Georgetown Univ. - Law) has posted Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution (Harvard Law Review, forthcoming). Here's the abstract:

[This article was being prepared for publication in the May 2008 issue of the Harvard Law Review when the Supreme Court handed down its decision in Medellín v. Texas on March 25. A revised version will appear in a later issue of the same journal.]

The case law concerning the judicial enforcement of treaties has long been regarded as a morass. Relying on the notion that treaties are contracts between nations generally enforceable only at the state-to-state level, primarily through diplomatic mechanisms, the lower courts have begun to require private parties invoking treaties to make a threshold showing of judicial enforceability, over and above the showing that litigants must make to enforce statutes and the Constitution. This Article argues that such a showing is unnecessary because the Supremacy Clause supplements the state-to-state enforcement mechanisms provided by international law with a domestic mechanism: enforcement in the courts at the behest of individuals. Under the Supremacy Clause, the judicial enforcement of treaties is governed by the same doctrines that govern the judicial enforcement of the other two forms of federal law - federal statutes and the Constitution. The sole exception to the foregoing proposition concerns treaties that are non-self-executing in the sense contemplated by the Court in Foster v. Nielson. This Article argues that the Constitution establishes a presumption that treaties are self-executing in this sense. The Court's subsequent decision in United States v. Percheman is best read to have recognized such a presumption when it wrote that a treaty is non-self-executing if it stipulat[es] for a future legislative act.

In recent years, the U.S. treaty-makers have been attaching declarations of non-self-execution to the human rights treaties the United States has ratified. These declarations appear to be stipulations of the sort contemplated by the Court in Percheman, but their validity has been the subject of considerable controversy. This Article concludes that declarations clearly stipulating that the treaty obligations being assumed by the United States are subject to legislative implementation do validly render the treaties non-self-executing in the Foster/Percheman sense.

Sloane: The Cost of Conflation: The Dualism of Jus Ad Bellum and Jus in Bello in the Contemporary Law of War

Robert Sloane (Boston Univ. - Law) has posted The Cost of Conflation: The Dualism of Jus Ad Bellum and Jus in Bello in the Contemporary Law of War (Yale Journal of International Law, forthcoming). Here's the abstract:

Much post-9/11 scholarship asks whether modern terrorism, the increasing availability of catastrophic weapons to non-state actors, and other novel threats require changes to either or both of the traditional branches of the law of war: the jus ad bellum, which governs resort to war, and the jus in bello, which governs the conduct of hostilities. Little if any work focuses on the equally vital question whether the relationship between those branches - and, in particular, the axiom that insists on their analytic independence - can and should be preserved in the twenty-first century. In fact, the issue has been almost entirely neglected since Sir Hersch Lauterpacht, the eminent former judge of the International Court of Justice, published a seminal article on the topic more than fifty years ago. This article revisits the issue in the twenty-first century. The traditional view, which I refer to as the dualistic axiom, holds that the jus in bello applies equally to all combatants - whatever the legality of their justification for resorting to force. Yet subjective conceptions of the justice or legality of conflicts increasingly erode the legal boundary between ad bellum and in bello constraints on war. Conflation of these distinct branches of the law of war also afflicts international jurisprudence. The cost of ad bellum-in bello conflation is high: conflation of the two threatens to compromise the efficacy of both. This article offers a qualified defense of the dualistic axiom but also tries to refine our understanding of it. It explains the sources and logic of conflation, shows its costs, and argues that we must resist the dualistic axiom's erosion. To adapt Justice Holmes's maxim, the life of the law of war (including the dualistic axiom) has not been logic: it has been experience. The axiom may not always withstand strict logical scrutiny, but it remains firmly grounded in historical experience and a realistic appreciation of the political and moral reality of war. Still, for the law of war to operate effectively, it must candidly confront new geostrategic developments, technological advances, and changes in the nature of warfare itself. The article concludes by clarifying how the dualistic axiom may best operate today to serve the policy values that underwrite it.

Workshop: Ginsburg

Tom Ginsburg (Univ. of Illinois - Law) will give a talk today at the University of Chicago Law School International Law Workshop on "International Delegation Through Treaties: The Nth Power."

New Volume: Irish Yearbook of International Law

The inaugural volume of the Irish Yearbook of International Law (Volume 1, 2006) is out. Contents include:

• David M Ong, International Environmental Law’s "Customary" Dilemma: Betwixt General Principles and Treaty Rules
• Alexander Orakhelashvili, The Power of the UN Security Council to Determine the Existence of a "Threat to the Peace"
• J. Paul McCutcheon & Gerard Coffey, Life Sentences in Ireland and the European Convention on Human Rights
• Maria Walls & Agustina Palacios, Changing the Paradigm - The Potential Impact of the United Nations Convention on the Rights of Persons with Disabilities
• Peter Hulsroj, To the Rescue, All Hands: The Good Neighbour Principle in International Law
• Getahun Seifu, The Interplay of the ACP-EU Economic Partnership Agreements and the Rules of the World Trade Organization: "Double Jeopardy" on Africa
• Leopold von Carlowitz, The Right of Property for Refugees and Displaced Persons?: On the Progressive Development of Customary Law by the International Administrations in the Balkans

ASIL Annual Meeting and Related Events

Beginning this Wednesday and continuing through mid-day Saturday, the American Society of International Law will hold its 102nd Annual Meeting. There are also a number of related events before and during the conference. Beginning yesterday and continuing today, the George Washington University Law School is hosting a conference on "Transnational Corporate Responsibility for the 21st Century." On Wednesday morning, ASIL and the Institute for Transnational Arbitration will hold their fifth annual joint conference. This year's topic is "'Soft Law' Instruments in International Arbitration." On Wednesday afternoon, ASIL, the World Food Law Institute, and the International Food and Agricultural Trade Policy Council will host a panel discussion on "Climate Change and Trade: WTO Rules and Jurisprudence on Process and Production Methods."

Perhaps also of interest to conference attendees are two congressional hearings scheduled for Thursday. In the morning, the Senate Committee on Foreign Relations will hold a hearing on "Negotiating a Long Term Relationship with Iraq." Witnesses will include: David Satterfield (Senior Adviser to the Secretary of State and Coordinator for Iraq), Mary Beth Long (Assistant Secretary of Defense for International Security Affairs), Joan Donoghue (Principal Deputy Legal Adviser, Department of State), Michael J. Matheson (George Washington University Law School), and Michael J. Glennon (Fletcher School of Law and Diplomacy, Tufts University). In the afternoon, the House Committee on Foreign Affairs's Subcommittee on International Organizations, Human Rights, and Oversight will hold a hearing on "War Powers for the 21st Century: The Constitutional Perspective." Witnesses will include: Bruce Fein (The Lichfield Group), Louis Fisher (Special Assistant to the Law Librarian, Law Library of Congress), Michael J. Glennon (Fletcher School of Law and Diplomacy, Tufts University), Jules Lobel (University of Pittsburgh School of Law), and Edwin D. Williamson (Sullivan and Cromwell, LLP).

McGinnis & Somin: Democracy and International Human Rights Law

John O. McGinnis (Northwestern Univ. - Law) & Ilya Somin (George Mason Univ. - Law) have posted Democracy and International Human Rights Law. Here's the abstract:

The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. Thus, on average, the quality of what we call "raw" international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies.

Our article does not rest on theoretical arguments alone. We describe several concrete effects of the nondemocratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potential harmful international law norms in with respect to "hate speech," the "humanitarian" law of war, and comparable worth.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an effective generator of human rights naturally leads to a willingness to consider domestic enforcement of international human rights that directly strengthen citizens' control over government policy. We thus seek to reorient international human rights law from generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments. As an example, we advocate more ample protection and enforcement for "migration rights" because these allow citizens around the world to "vote with their feet" and thus help them control the actions of the governments under which they live.

Conference: Reform and Challenges Confronting Regional Human Rights Regimes

Tomorrow, April 8, 2008, the American Society of International Law, the Columbia Society of International Law, and Columbia Law School’s International and Comparative Law Faculty will host the annual Friedmann Conference. This year's topic is "Reform and Challenges Confronting Regional Human Rights Regimes." Why attend?

The Friedmann Conference is held annually in memory of Columbia Law School Professor Wolfgang Friedmann, who was respected for his extraordinary commitment to the practical realization of an international rule of law. This year, the Conference will honor Antônio Augusto Cançado Trindade, a former President and Judge of the Inter-American Court of Human Rights.

The Conference will be broken into three panels, featuring judges, practitioners and academics working internationally and domestically on European and Inter-American human rights issues. The first panel, "Structure and Reform of the Inter-American Court," will be moderated by Professor Sarah Cleveland. The second panel, "The European Human Rights Regime," will be moderated by Professor George Bermann, and the third panel, "Jurisprudence of the Inter-American Court," will be moderated by Judge Cançado Trindade.

WTO Panel Report: European Communities - Regime for the Importation, Sale and Distribution of Bananas

Today, a Panel established by the WTO's Dispute Settlement Body issued its Report on the case European Communities - Regime for the Importation, Sale and Distribution of Bananas: Second Recourse to Article 21.5 of the DSU by Ecuador (DS27). The full Report can be found here. An excerpt containing just the Panel's conclusions and recommendations can be found here. A summary of the case can be found here.

Senechal & Gotanda: Interest as Damages

Thierry Senechal (International Chamber of Commerce) & John Y. Gotanda (Villanova Univ. - Law) have posted Interest as Damages. Here's the abstract:

In this article, we posit that when arbitral tribunals decide international disputes, they typically fail to fully compensate claimants for the loss of the use of their money. This failure occurs because they do not acknowledge that businesses typically invest in opportunities that pose a significantly greater risk than the risk reflected in such commonly used standards as U.S. T-bills and LIBOR rates. Claimants also must share the blame when they do not set out a well-constructed claim for interest as damages. However, even when claimants do so, tribunals often award damages at a statutory rate or at rate reflecting a nearly risk-free investment because they are unfamiliar with modern economic and financial principles. We propose changing this practice. We set out a legal framework for allowing an award of interest as damages and then furnish a model for claimants and tribunals to use. Under this model, interest accrues at a risk-free interest rate plus a market risk premium with the interest award to be compounded on a yearly basis. This model would bring awards in line with modern economic realities and more accurately compensate injured parties.

New Issue: International Legal Materials

The latest issue of International Legal Materials (Vol. 47, no. 1, January 2008) is out. Contents include:

• International Court of Justice: Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, with introductory note by Coalter Lathrop
• European Court of Human Rights: D.H. v. Czech Republic, with introductory note by Antti Korkeakivi
• Intergovernmental Panel on Climate Change: Fourth Assessment Report Summary for Policymakers, United Nations Framework Convention on Climate Change, with introductory note by Don Anton
• Genocide Accountability Act of 2007, with introductory note by Mark Drumbl
• Sudan Accountability and Divestment Act of 2007, President George W. Bush Signing Statement to Act, with introductory note by Jerry Fowler & Zahara Heckscher

New Issue: World Arbitration and Mediation Review

The latest issue of the World Arbitration and Mediation Review (Vol. 1, no. 6, 2007) is out. Contents include:

• Jessica L. Cambridge, Privatization of Public Services: UNCITRAL and Transparency
• Emily J. Tucker, Landis' Last Chance: Rising Concerns Over Anti-Doping Arbitral Proceedings

Workshop: Wuerth

Ingrid Wuerth (Vanderbilt Univ. - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium on "An Originalism for Foreign Affairs?"

New Issue: Yale Journal of International Law

The latest issue of the Yale Journal of International Law (Vol. 33, no. 1, Winter 2008) is out. Contents include:

• Peter G. Danchin, Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law
• Odette Lienau, Who is the "Sovereign" in Sovereign Debt?: Reinterpreting a Rule-of-Law Framework from the Early Twentieth Century
• Katherine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content

New Volume: Australian International Law Journal

The latest volume of the Australian International Law Journal (Vol. 12, 2005) is out. Contents include:

• Ben Saul and Sally Johnston, Editorial
• Ivan Shearer, President's Address, International Law Association (Australian Branch) Annual General Meeting 2005
• John King Gamble & Kevin Belknap, The Emergence of a Pacific Region in Multilateral Treaty-Making: A 500-Year Perspective
• Sue Robertson, 'Beseeching Dominance': Critical Thoughts on the 'Responsibility to Protect' Doctrine
• Chris Faris, The Laws of Occupation and Human Rights: Which Framework Should Apply to United Nations Forces?
• Kristen Dorman, Proportionality and Distinction in the International Criminal Tribunal for the Former Yugoslavia
• Sarah Louise Steele, Victim-Witnesses in the International Criminal Court: Justice for Trauma, or the Trauma of Justice?
• Hossein Esmaeili, Attempts to Regulate Biotechnology in International Law and the Response of Australian Law